«(Social policy – Equal treatment for men and women – Scheme of part-time work for older employees – Directive 76/207/EEC – Indirect discrimination – Objective justification)»

1.. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Possibility for public-sector employees, on reaching a certain age, to take advantage of a scheme of part-time work – Exclusion from part-time work of employees entitled to a retirement pension at the full rate – Exclusion applying at the age of 60 years almost exclusively to women, as in most cases men are not affected until the age of 65 years – Indirect discrimination – Not permitted in the absence of objective justification (Council Directive 76/207, Arts 2(1) and 5(1))

2.. Social policy – Men and women – Access to employment and working conditions – Equal treatment – Directive 76/207 – Article 5(1) – Direct effect – Obligations and powers of the national court – Non-application of national provisions to the contrary (Council Directive 76/207, Art. 5(1))

JUDGMENT OF THE COURT (Sixth Chamber) 20 March 2003 (1)

((Social policy – Equal treatment for men and women – Scheme of part-time work for older employees – Directive 76/207/EEC – Indirect discrimination – Objective justification))

In Case C-187/00,

REFERENCE to the Court under Article 234 EC by the Arbeitsgericht Hamburg (Germany) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Articles 2(1) and 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40),

THE COURT (Sixth Chamber),,

composed of: R. Schintgen, President of the Second Chamber, acting for the President of the Sixth Chamber, C. Gulmann, V. Skouris, F. Macken (Rapporteur) and J.N. Cunha Rodrigues, Judges,

Advocate General: A. Tizzano,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Ms Kutz-Bauer, of Freie und Hansestadt Hamburg, of the German Government and of the Commission at the hearing on 23 October 2001,

after hearing the Opinion of the Advocate General at the sitting on 5 February 2002,

gives the following

Directive 76/207

Directive 79/7/EEC

German provisions on retirement

German provisions on part-time work for older employees

Observations submitted to the Court

Reply of the Court

Observations submitted to the Court

Reply of the Court

.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Arbeitsgericht Hamburg by decision of 3 May and 29 June 2000, hereby rules:

Schintgen

Gulmann

Skouris

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 20 March 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber